Among the issues Pohl must decide is whether the defendants can be excluded from the courtroom during discussions about classified material. All five men were held at secret sites by the CIA before they were transferred to Guantanamo Bay in September 2006.
They were subjected to so-called enhanced interrogation techniques, some of which have been condemned as torture by President Obama and Attorney General Eric H. Holder Jr. Mohammed was waterboarded 183 times, a technique that makes the victim experience a drowning sensation.
Any evidence about the detainees’ treatment while in CIA custody at secret overseas prisons will almost certainly be presented in sessions closed to the public.
The proceedings Monday were monitored through a closed-circuit television system that broadcast from Guantanamo Bay to Maryland’s Fort Meade.
The defense has filed a motion to secure reports on Guantanamo Bay by the International Committee of the Red Cross that were given to the U.S. government. The Red Cross is the only outside organization with direct access to the 166 men being held at the facility, including high-value detainees such as Mohammed, who are at a complex known as Camp 7.
Defense attorneys want to see Red Cross reports on Camp 7 to evaluate whether conditions affect the detainees’ ability to assist in their own defense. Pohl ruled in January that defense counsel could visit the camp, but that has not occurred.
The Red Cross is opposing the motion. The organization argues that its communications with the United States and other governments on detention issues must remain confidential to allow it to work effectively.
The Red Cross, in a filing with the court, said the military judge should “recognize the ICRC’s absolute privilege of non-disclosure of its confidential information, as has been done by all international tribunals to have considered this issue.”
“It would be a serious setback if the ICRC were forced to reconsider its confidential dialogue with the U.S. Government,” lawyers for the Red Cross wrote, “but it would be even more serious if the ICRC’s dialogues with other parties to conflicts were put at risk by a negative U.S. decision, which would certainly have important global repercussions given that U.S. practice on detention is often looked at as a model by the rest of the world.”
Two of the defendants, Mustafa al-Hawsawi and Walid bin Attash, have filed a motion seeking to have the judge bar the authorities from force-feeding them. There were 104 detainees at Guantanamo Bay on hunger strike Monday, 43 of whom were being force-fed, military officials said. The government said the motion is irrelevant because neither man is on hunger strike.
Obama, largely in response to the hunger strike, said in a speech last month that he would renew his efforts to close the detention facility, a first-term promise that went unfulfilled.
The chief military prosecutors, speaking at Guantanamo Bay on Sunday, acknowledged that the process can seem laborious but said progress toward a trial is real.
“While there is much more to do, and impatience with the pace of proceedings is understandable, significant work has been accomplished in this pre-trial phase,” Brig. Gen. Mark Martins said in prepared remarks. “To date, the parties have briefed in writing 102 substantive motions and have orally argued some 24 motions in previous sessions.” He noted that the government has turned over 170,000 pages of unclassified discovery to the defense.
Much of Monday’s session was spent on the defense questioning of retired Rear Adm. Bruce MacDonald, a former Pentagon official who was responsible for reviewing the charges and approving the prosecutions. Attorneys for some of the detainees said they did not have enough time to get mitigation experts and argue against bringing a death penalty case before MacDonald made his decision. They are asking the judge to dismiss the case because of a defective referral.
MacDonald was also questioned extensively about whether security procedures were interfering with defense attorneys’ ability to communicate effectively with their clients, including their ability to get written materials to the defendants.